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Monday, September 12, 2011

Medical examiners' work may be "void" for failure to file constitutional oaths, bribery statements

A controversy over the credentials of medical examiners raised by researcher David Fisher has counties around the state checking to see if their medical examiners have executed a written oath of office and a bribery statement, which seemingly most have failed to do. Reported KCBD-TV in Lubbock:

A legal challenge could unravel the validity of many murder cases in Texas, including some done in the past in Lubbock. Former Lubbock County Deputy Medical Examiner Paul Schrode faces just such a challenge for the work he did as Chief Medical Examiner in El Paso. In 2010, Schrode was fired from El Paso amid allegations that he falsified his resume while in Lubbock to get the El Paso Chief's job.

This newest challenge is not an allegation of lying but rather a failure to complete paperwork for public officers in Texas. Schrode did not execute a written oath of office nor a bribery statement. The Texas Constitution demands such paperwork for all public office holders.

Therein lies the rub. Is a Medical Examiner a public office holder?

If so, the lack of such documentation could be used to challenge autopsies done by Schrode both in El Paso and in Lubbock. Countless criminal cases involving an autopsy could suddenly be subject to tough legal questions.

Medical Examiners in Dallas, Tarrant, and other counties have recently executed written oaths of office and bribery statements.

By contrast, the Harris County Medical Examiner's Office said on Wednesday, "The Chief Medical Examiner serves at the pleasure of Commissioners court. This is not a constitutional office; therefore, neither Chief Medical Examiner nor his appointed Assistant Medical Examiners are required to take an oath of office."

The man who has instigated some of these challenges statewide, David Fisher, is a document specialist who often works for defense attorneys.

Fisher says, "According to the state Constitution, all state and county elected and appointed officials must execute the bribery statement before taking the oath of office." He also says, "Any public official who controls any portion of state sovereignty is subject to this requirement and this includes medical examiners."

Fisher cites an Attorney General legal opinion in support of his claims. He also says, "It could affect 90 percent of the people on death row."

The same issue was raised earlier this summer in an El Paso case over essentially similar allegations. Notably, the National Academy of Sciences singled out medical examiners as facing a major talent shortage, and as a last bastion of un-examined junk science. While the oath of office may seem like a technicality, it does speak to the loosey-goosey way in which medical examiners are regulated in Texas, or rather, how they are not. The Fort Worth Star Telegram reported in 2009 that the field had come under fire for a "lack of performance standards, poor documentation, a shortage of qualified personnel and lax oversight."

Besides Dallas and Tarrant, the medical examiner in Webb County (Laredo) also filed an oath and bribery statement just last week, though she's been in office since 2007. The Webb County Attorney had declared that "Until such time as she has taken the oath with the appointment as medical examiner then everything she did prior to that is void." Which raises the question, what happens to older cases that the medical examiner evaluated without the oath and bribery statement? Are they "void" as well? I can see why the Harris County medical examiner stuck to their guns: Filing the oath now implies the ME agrees they should have done so earlier, which potentially calls into question all their old cases. What a Grade A mess it will be if courts decide those cases are invalid. And yet, if Fisher's interpretation of the AG opinion is correct, that seems to be the law. The El Paso case will likely be the first place the theory is tested.

UPDATE: In the comments, David Fisher pointed to this document (pdf) from the Texas Association of Counties giving guidance on who must have an oath on file, and it includes county medical examiners. He also pointed to this AG's opinion (pdf) which declared, "Local officers must sign the statement and retain it with the official records of the office," though the opinion doesn't specifically address medical examiners. The court precedent Fisher relies upon to claim medical examiners are public officers (Prieto Bail Bonds v. State) similarly doesn't specifically mention medical examiners, but it does read: "An individual is a public 'officer,' within meaning of constitutional provision requiring oaths of appointed officers, if any sovereign function of the government is conferred upon that individual to be exercised for the benefit of the public largely independent of the control of others; public officer is one who is authorized by law to independently exercise functions of either an executive, legislative, or judicial character.." I'd have to agree with Fisher that it'd be hard to conclude the state has not conferred upon medical examiners a "sovereign function of the government" that is "largely independent of the control of others." The courts will have to decide - and the pragmatic aspects of this issue may end up trumping - but Fisher's seems like a strong argument.

I believe police do take an oath. Somewhere in my past I remember something about "sworn to uphold the laws and constitution of Texas." I don't remember any "bribery" statement though and maybe that's the critical point.

The Court case your looking for is Prieto Bail Bonds vs. Texas, and the AG Opinion is JC-0575. The Texas Association of Counties Legal Department publish a guide in 2006 for their member counties, laying out who is required to file a Statement of Appointment, Oath and or Bond. You can find the PDF File at, http://www.epcounty.com/auditor/payroll/outlineofoath&bond.pdfNow that this issue is out, the Attorney Generals Office told a Houston reporter last week that county medical examiners are county employes and not covered by Art. 16 of the Texas Constitution. The Harris Co. Medical Examiners office put out a Press Release on Sept. 7, 2011 say the Chief medical Examiner is an "At Will Employee" of the commissioners court. In Laredo the same issue has been in the press for the last week and there too, the district attorney claims the medical examiner, Corinne Stern is a county employee not subject to article 16. (www.pro8news.com) The problem with this position is Texas has the "Corporate Practice of Medicine Act", which makes the hiring of a doctor to practice medicine illegal, unless the legislature grants a waver, like they just did for the TDCJ. The Texas Code of CriminalProcedure, Art. 49.25, Sec. 2 states the medical examiner is "Appointed" by the commissioners court. My research found no medical examiners office has been constitutional for at least the last thirty years.

The issue of the constitutionality or non-constitutionality of the practice is something that anyone can have an opinion about, but only certain people are actually empowered to decide. So however emphatically Mr. Fisher and others may argue that medical examiners are covered, it is still simply an opinion of certain folks who are not empowered to decide. AG opinion JC-0575 doesn't state that medical examiners are included in the category of local officials who must sign the anti-bribery statement. It just says that some local officials (but not all) must sign the statement. So it is really not an opinion at all regarding medical examiners per se.

Texas Constitute Article 16 section 1 relates to appointed "officials". Is anyone appointed by a commissioner's court an "official"? Or can a commissioner's court appoint people who are not "officials"? Is the medical examiner an example of an appointment to a position when the position is not an "official"?

Document issued by Texas Association of Counties is prefaced with a long preamble statement that basically says: For research purposes only. It is clearly not intended as the final word. And it specifically says, don't use this information without checking with an attorney. So it is clearly not the equivalent of a specific AG opinion or a specific court decision.

Perhaps not, 12:51, but it also shows others than Fisher - including the counties' trade association - have interpreted the law thusly in the past. His is not the controversial interpretation - it's the Harris ME that's engaging in revisionism.

As mentioned in the update, based on the Prieto case Fisher cited, courts can only conclude the oath is not required if they decide the state has NOT conferred upon medical examiners a "sovereign function of the government" that is "largely independent of the control of others." Can you honestly say that definition doesn't fit their duties to a T?

County medical examiners appointed under TCCP, art. 49.25 have the same authority to hold inquest as the Justice of the Peace they replace. The medical examiner has the authority to hold inquest and thus can issue subpoenas, swear the witness who has been called to testify, and issue an arrest warrant. All these are sovereign powers of the State.(see AG Opinions 0-6640, 97-101, and JC-0083) A county judge nor the commissioners have any authority to move a body, so have no authority to grant what they do not have to an employee of the county. The State is already in a hole, I think it's about time to stop digging before they make thing worse.

dfisher said: "The State is already in a hole, I think it's about time to stop digging before they make thing worse." If your opinion is correct, then it's hard to see how waiting for a court to rule would make things worse. You're basically saying that all murderers need to be released because all manner of death determinations (including homicide) are void. It seems reasonable that the state would want to argue vigorously against this. But hey, I just live here.

I agree with DFISHER. Article 49.25, Code of Criminal Proecedure, authorizes and governs medical examiners in this state.

Section 12 of that article provides:

"Sec. 12. When the commissioners court of any county shall establish the office of medical examiner, all powers and duties of justices of the peace in such county relating to the investigation of deaths and inquests shall vest in the office of the medical examiner. Any subsequent General Law pertaining to the duties of justices of the peace in death investigations and inquests shall apply to the medical examiner in such counties as to the extent not inconsistent with this Article, and all laws or parts of laws otherwise in conflict herewith are hereby declared to be inapplicable to this Article."

The first medical examiners office was formed in Bexar County. The below is an excerpt from their website...On December 28, 1955, The Bexar County Commissioners' Court authorized the County Auditor to include in the 1956 Budget the sum of $25,000 to create the position of Medical Examiner with the money used to defray the salary and office expenses of the Medical Examiner. On April 2, 1956, the Commissioners' Court "appointed" Dr. Robert Hausman as the first Medical Examiner effective July 1, 1956. He was given a salary of $14,000 per year with an expense allowance of $1,200. He was also allowed an assistant at $3,600 per year with $600 per year expense allowance, and a secretary at $3,000 per year." The Bexar County Medical Examiner's Office became operative July 1, 1956. Dr. Hausman, took the "oath of Office" on July 2, 1956, and received his first case, a suicide, two hours after the ceremony...Clearly the commissioners court in Bexar County understood the constitution and the statute in 1956, so what's the problem today? You can see the entire article at (http://www.co.bexar.tx.us/medicalexaminer/BCSD_MedExaminer_T102_R3.html)

On the one hand if a M.E. serves at the pleasure of local government then the office of M.E. lacks independence. If it lacks independence then the impartiality of the office is tainted, and thus compromised.

On the other hand if a M.E. is independent (i.e. the negation of a lack of independence) then the M.E. does not serve at the pleasure of local government. This is a classic modus tollens argument.

Thus, either the M.E. is independent, and is therefore an official, or the M.E. is not an official and the position of M.E. is compromised by a lack of impartiality due to a lack of independence.

I wouldn't go getting my hopes up regarding this. While it may indeed be a valid matter of law, the current republican judges in charge of the vast majority of courts will simply make a favorable ruling against any challenge and put this matter quickly to rest. Why would anyone think otherwise?

dfisher: Bexar County understood things one way. But clearly, there are quite a few counties that understood things differently. The fact that Bexar County understood things one way and took actions in accord with that understanding is interesting, but it doesn't mean that the contrary understanding was incorrect. If arguments by example are going to be taken as meaningful and significant (as opposed to arbitrary, selective and self-serving which they clearly are) then the examples of county x, y and z not administering the oath need to be viewed as definitive demonstrations that medical examiners do not hold an office subject to the oath.

No court is going to reverse a conviction over such a technicality. The real issue is the qualification of the person to determine a cause of death, not some piece of paper he did or did not sign. What typical liberal hysteria. Only a liberal would rub his hands with glee over the prospect of killers going free.

6:02 - It's incorrect to characterize this as a liberal thing. Maybe where I live is special, but the last time I checked even the most die-hard liberals I know didn't really care for convicted murderers walking free. I think this legalistic brouhaha falls way outside the standard conservative/liberal dichotomy. It makes sense for a defense attorney to grab onto a technicality in an effort to do the best job they can for their client. But there's no profound public policy issue here. Except perhaps as another example (do we really need another one) of how state constitutions sometimes contain idiotic historical anachronisms.

If the crux of the issue is whether the actions of the official who is named the medical examiner are "largely independent of the control of others", then there would seem to be considerable room for debate. Even a function so basic as the determination of cause and manner of death, the medical examiner does not necessarily act independently. In medical examiner offices that employ staff medical examiner's, the chief medical examiner (the office holder) doesn't make cause and manner of death determinations independently. The other medical examiners must be in agreement, and must sign off on the report. This is different from the powers of a justice of the peace who independently rules on cause and manner of death, and who can independently come to a different decision than the medical examiners office that did the autopsy. It would be nice if things were black-and-white. But if they were black-and-white then there would not be the difference of interpretation between counties that exists.

8:19, according to the statute, the duties of MEs are identical to JPs. See the quote above: "When the commissioners court of any county shall establish the office of medical examiner, all powers and duties of justices of the peace in such county relating to the investigation of deaths and inquests shall vest in the office of the medical examiner." The fact that the ME employs staff in that function doesn't mean he or she hasn't taken on a "sovereign" authority. The authority is vested in the "office," not the individual.

Also, this comment is either naive or disingenuous: "if they were black-and-white then there would not be the difference of interpretation between counties that exists." IMO it's not whether the law is clear but whether counties are willing to face the consequences of not having followed the law that explains the difference in interpretations.

6:40's right this is not a liberal/conservative issue. It's a professionalism issue. And this isn't the only area where Texas ME's professionalism in recent years has been seriously called into question. The whole field is frankly ripe for some fairly radical reforms.

I also agree with those who doubt Texas courts will provide anyone relief over this issue. It's much like Fourth Amendment violations that courts routinely find ways to overlook on grounds of "reasonableness." When an honest interpretation of the law would result in fewer prosecutions, convictions, overturning old cases, etc., Texas courts simply go with a dishonest interpretation and then insist stridently to everyone within listening range that the naked emperor is, in fact, wearing clothes. If I were a betting man, I'd wager that's what will happen in the end on this question.

GFB: To frame this as a professionalism issue on the part of medical examiners is patently disingenuous. This has nothing to do with professional conduct of physicians. If you have issues with professionalism of anyone, you really ought to address them in a direct and forthright manner instead of trying dress up this sort of technicality as something it isn't.

10:01, failing to fulfill statutory obligations of one's office speaks to a lack of professionalism.

For that matter, we've seen plenty of other examples of a lack of professionalism in the field, of which this issue is just another datapoint. I'd also ecourage you to read Chapter 9 on MEs in the 2009 NAS report on forensic science - there's a national shortage of trained professionals and virtually no standards or oversight for their work. This episode reinforces the point that nobody's out there holding MEs accountable. And it's doubtful the courts will, either.

Holy donuts, Batman, judges rarely bother to have their oaths and so on, either. But they know they don't have real oversight. Occasionally you can work that angle, but they've circled the wagons; at worst case for them, they can move around "visiting" judges and other changes to avoid whatever they like. How a lowly medical examiner or such can get away with it maybe shows the holes in the system--the runarounds of evolved unwritten policy to circumlocute the written laws. Don’t bother with that oath; you’re in the government, now. THAT WAY NO ONE IN THE PUBLIC (outside the lawyers union) CAN FIGHT BY THE RULES----BECAUSE YOU WON'T KNOW THE RULES. I was never sure about your motto, beat the rap but not the ride; but that's how I feel at court.

Bad root cause analysis here. The problem isn't with people not taking oaths. The problem is with requiring people to take oaths at all. I've always liked the Quaker take on this: If a man is honest, taking an oath is unnecessary; and if a man is dishonest taking an oath won't do any good. So just get rid of all this oath taking. It's all bunkum.

That's fine to say, 3:01, but it's a constitutional requirement, so: A) it wouldn't impact what's already happened and b) changing the constitution takes 2/3 votes in both chambers and is easier said than done.

Think about it: What legislator is going to vote to ELIMINATE an oath against bribe taking? Even if your root cause analysis is correct, incumbents worried about reelection won't take that vote.

7:10, you think eliminating an anti-bribery statement and oath is a good thing, but they were established for a reason, Quaker sentiments notwithstanding. The public would likely not view eliminating them as a good thing.

The reason that this won't fly in court is that the testimony of a medical examiner is as an expert who performed an examination and formed conclusions and opinions based on that examination. A qualified physician who is not the medical examiner can perform a medical autopsy and then testify as an expert witness. The admissibility of that expert testimony is based upon medical training and credentials of the physician, not upon an official status as a medical examiner.

I don't think that this will be going anywhere in court. I could even see the federal courts ruling the oath portion violates the first amendment (as I understand it the official Texas oath has a religious component, unlike the federal counterpart where officials merely add that on their own). Is the bribery statement under question the statement wrapped into the oath "and I furthermore solemnly swear (or affirm), that I have not directly or indirectly paid, offered, or promised to pay, contributed, nor promised to contributeany money or valuable thing, or promised any public office or employment as a reward for the giving or withholding a vote at the election at which I waselected, or if the office is one of appointment, to secure my appointment" or something else? I could see the federal courts ruling that the religious component is not severable, that the oath stands or falls together.

As for the rest, I think the courts will mostly say something like the defendant wasn't actually harmed by the omission and therefore can't raise it as a claim in habeas, and even on direct review it had better have been raised at trial and preserved otherwise it has been waived. And even a defendant with such a such a Prescient attorney is still going to lose on harmless error analysis.

Soronel, in the El Paso case it was raised pretrial, and apparently in the Houston case Fisher mentioned, too. So the error was preserved for direct appeal and we'll see soon enough what the courts do with it.

You know, lots of folks think giving traffic tickets for a few miles over the speed limit is chickenshit, but it's the law and if you speed and get a ticket, you must pay. When some chickenshit law is violated by government actors, though (or even much more serious ones), somehow the letter of the law becomes less critical to Texas judges, at least in my observation.

If the government doesn't have the power to compel this particular oath then it isn't law despite being styled as such. An unconstitutional law is a nullity as if it had never been.

Now,I do think the government has the power, other than the religious portion, and I would say that portion is entirely severable from the remainder.

And I believe Anonymous @ 6:16 is also right. Someone, somewhere might have a claim, perhaps a false claims type action for a medical examiner submitting bills when they are not properly on official because they haven't executed these papers. Or perhaps the target of some official demand (such as turning over evidence, I don't know whether an ME has that ability or not). But that has nothing to do with whether they are qualified to provide testimony in court.

And remember also, that since this is a state law duty, federal habeas simply not available (as SCOTUS reminded us a couple times last term) -- not that I think the 5th circuit would be particularly sympathetic to these claims. So these defendants are going to have to convince Texas courts that this duty is an error of such magnitude as to question the fairness of judicial proceedings. I just don't see that happening. Texas courts have rejected out of hand far more meritorious claims, I don't see this being the wild exception.

There is no question that driving over the speed limit is illegal and that there is a penalty defined in law for doing it. And not often but sometimes someone gets caught and he has to pay a fine that is reasonably proportional to the offense.

And somehow that is connected to what is at very worst an administrative glitch unrelated to real professional qualifications, and the penalty you are looking for (because there is no penalty written in the law) that would be acceptably proportional to the infraction is to free all murderers and put them out on the streets so that they could murder again?

I'm not seeing where there is any reasonable, thoughtful, or workable public policy being proposed here.

I'm not sure how you reached your conclusion that the oath (or affirmation) of office requirement is unconstitutional. The oath (or affirmation) of office is required by Section 1(a), Article XVI, Texas Constitution. The religious component of an oath can be avoided by an officer's decision to affirm rather than swear to the truth of the officer's statement. The officer's statement required by Subsection (b) of that section can also be affirmed rather than sworn too. I do however, agree with the last sentence of your post.

Actually, the Texas Constitution provides some latitude for affirming in a non-religious fashion (rather than swearing in a religious fashion) for witnesses in courts. But there isn't the same latitude for officials. There is precise language for official oaths/affirmations (Art 16, Sec 1). You can either swear or affirm, but even if you affirm you have to say "so help you God", which of course turns an affirmation into a religious oath. So it may very well be that the oath of office in Texas is unconstitutional.

Soronel, nobody but you has suggested the oath is unconstitutional - certainly not any Texas or federal court, which are the only opinions that matter. I seriously doubt you're correct.

12:03, you're reacting to some stereotype you carry around in your head, not anything I've written. Since I never suggested "the penalty [I am] looking for ... is to free all murderers and put them out on the streets so that they could murder again," I feel no compulsion to defend a position I've never taken. In fact, I've suggested such an outcome is unlikely, even though I agree with Fisher they've pretty clearly messed up.

Finally, I think my comment about enforcement of chickenshit laws speaks for itself: the gubmint thinks it's important when members of the public violate seemingly trivial laws, but when the government fails to follow the letter of the law (in virtually every instance, not just this one), there always seems to be an excuse why everybody gets a pass. Just sayin'....

Tonight in the 315th Harris CO. District Court, Judge Michael Schneider ruled medical examiners have no sovereign power under the TX Constitution and are mere at-will employees of the commissioner courts. This ruling makes all autopsies in Harris County illegal, as the TX Corporate Practice of Medicine Act makes it illegal for anyone to hire a doctor to practice medicine, except another doctor. The exception to the Corporate Practice of Medicine Act is for the legislature to grant a waiver as they did this last session for rural counties and the TX Department of Criminal Justice. No waiver has ever been granted for county commissioners. More and more in TX, Judges are becoming another arm of the executive branch of government.

Would you be interested to know of another oath REQUIRED by the United States Constitution and the very first Federal Law passed pursuant to it, that NO Texas Official I have checked has ever taken? Including our own DA John Bradley?

The first federal law is found at 1 Stat. 23 and was passed to implement Article VI, Clause III of the U.S. Constitution.

Angel Cook~My 19 year old son was autopsied @ SWIFS/Dallas, on 2/17/06. I believe his ruling of Suicide is erroneous. The M.E., Dr. Reade Quinton, told me he had initially ruled Undetermined, until receiving a report from the detective, causing him to change the ruling to Suicide. I totally disagree. The M.E. had NO documents other than the 13-14sentence statement of the inept detective. www.realcrimes.com/Robinson/Robinson.htm

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